In his new book Weak Courts, Strong Rights, Professor Mark Tushnet considers the most effective form of judicial review in the context of protecting socioeconomic rights.  He embarks on this analysis by identifying two types of judicial review—"strong-form" and "weak-form"— and examining them using a comparative analytical framework, looking to rights-enforcement models from around the world.  Tushnet concludes that weak-form review is most consistent with a commitment to democratic self-governance, and is thus the most desirable mode of review.  After analyzing several examples of weak-form review in practice, Tushnet argues that a form of the "dialogic" mode of review—in which a legislature "sometimes, and not rarely," but not "too often, or routinely," asserts its own understanding of the constitution above that of the judiciary—is the ideal system for the protection of socioeconomic rights.  In his review of Professor Tushnet's new book, Brett Kaufman evaluates Tushnet's framework under both a theoretical and a practical approach.

Kaufman employs public choice analysis—which he argues is applicable to constitutional decision making—to conclude that Tushnet's weak-form system, which leaves the "legislature's insistence on its own reasonable interpretation legally effective," provides inadequate protection of socioeconomic rights.  On a practical level, Kaufman examines constitutional decision making in Latin America.  Through case studies of several Latin American courts, Kaufman demonstrates that the protection of constitutional social and economic rights in that region would not be viable without a strong judiciary having the authority to be the last mover in the constitutional dialogue.  Thus, Kaufman argues, a stronger version of Tushnet's dialogic mode of review—the "weak–strong" approach to the enforcement of socioeconomic rights—ultimately holds the greatest promise for the protection of these rights around the world.